Ord 298ORDINANCE NO. 298
AN ORDINANCE OF THE CITY OF POWAY,
CALIFORNIA AMENDING CHAPTER 5.60 OF
THE POWAY MUNICIPAL CODE RELATING TO
CABLE COMMUNICATIONS OR CABLE
TELEVISION SYSTEMS
WHEREAS, in October 1984, the City of Poway adopted Ordinance No. 129 to pro-
vide for the establishment and granting of franchises or privileges for the
construction, maintenance and operation of Cable Co,,m, unications or Cable
Television Systems, and further providing for the continuing regulation and
administration of these Franchises and the activities relative to them; and
WHEREAS, the Cable Franchise Policy and Communications Act of 1984 preempts
and invalidates language in our current ordinance; and
WHEREAS, the City of Poway conducted an Environmental Initial Study and
determined that the adoption of the proposed ordinance would not cause any
significant adverse environmental impacts; and
WHEREAS, The City Council hereby issues a Negative Declaration.
NOW, THEREFORE, The City Council of the City of Poway does hereby ordain as
follows:
Section 1: Chapter 5.60 of the Poway Municipal Code is hereby amended to
read as follows:
CHAPTER 5.60
I. GENERAL PROVISIONS
5.60.005 Intent. The City finds that the development of Cable Television
and Communications Systems has the potential of having great benefit and impact
upon the people of the City. Because of the complex and rapidly changing tech-
nology associated with cable television, the City further finds that the public
convenience, safety and general welfare can best be served by establishing regu-
latory powers which should be vested in the City or such persons as the City
shall designate. It is the intent of the ordinance codified in this chapter and
subsequent amendments to provide for and specify the means to attain the best
possible public interest and public purpose in these matters and any Franchise
Agreement issued pursuant to this chapter shall be deemed to include this
finding as an integral part thereof.
5.60.015 Definitions. For the purpose of this chapter the following terms,
phrases, words and their derivations shall have the meaning given herein. When
not inconsistent with the context, words used in the present tense include the
future, words in the plural number include the singular number, and words in the
singular number include the plural number. The words "shall" is mandatory and
"may" is permissive. Words not defined shall be given their common and ordinary
meaning.
1. "Additional Subscriber Service" means any service not included in "Basic
Television Service," or "Basic Subscriber Radio Service" or "Institutional
Service," including, but not limited to, "pay-cable."
Ordinance No, 298
Page 2
2. "Agency Subscriber" means a Subscriber who receives a service in a
government or public agency, school or nonprofit corporation as specifled in
the Franchlse Agreement.
4. "Basic Service" means the total of all of the following:
a. The transmission to all Subscribers of all broadcast television
channel signals authorized by the FCC and provided for in a Franchise Agreement;
b. The cablecasting to all Subscribers of local origination programming
and public, education and government access programming;
c. The transmission to all Subscribers of all other cablecasting open-
channel signals.
Basic Service may be offered to subscribers in one or more tiers or
combination of programs.
5. "Broadcast Signal" or "Signal" means a television or radio signal that
is transmitted over the air to a wide geographic audience and is received by a
Cable Co.~F~unications System off-the-air or by microwave.
8. "Cable-mile" means a linear mile of cable bearing strand as measured on
the street or easement from pole to pole or pedestal to pedestal.
9. "Channel" means a frequency band, which is capable of carrying either
one standard television or video signal, a number of audio, digital or other
nonvideo signals, or some combination of such signals.
16. "Council" means the governing body of the City of Poway.
17. "Education Channel" or Education Access Channel . . .
lB. "FCC" means the Federal Communications Commission . . .
19. "Franchise" means the nonexclusive rights granted pursuant to this
chapter to construct and operate a Cable Communications System along the public
way within all or a specified area in the City. Any such authorization, in
whatever form granted, shall not mean and include any license or permit
required for the privilege of transacting and carrying on a business within the
City as required by other ordinances and laws of this City.
20. "Franchise Agreement" means a Franchise awarded ordinance . . .
21. "Franchise Fee" means the fee paid by the Grantee to the Grantor . . .
22. "Government Channel" or "Government Access Channel" means any channel
for which local government agencies are the primary designated programmers.
23. "Grantee" means any "person" receiving a Franchise . . .
24. "Grantor" or "City" means the City of Poway as . . .
Ordinance No, 298
Page 3
25. "Gross Annual Revenues" means the annual gross revenues received by the
Grantee from all sources of operations of the Cable Communications System,
as further defined in the Franchise Agreement,
26. "Initial Service Area" means the area of the City . . .
27. "Installation" means the connection of the system . . .
28. "Leased Channel" or Leased Access Channel" means any channel . . .
29. "Local Origination Channel" means any channel where . . .
30. "Monitoring" means observing a communication signal, or the absence of
a signal, where the observer is neither the Subscriber nor the programmer,
whether the signal is observed by visual or electronic means, for any purpose
whatsoever. Monitoring shall not include system-wide, nonindividually addressed
sweeps of the system for purposes of verifying system integrity, controlling
return paths transmissions, billing for pay-cable, verifying compliance with FCC
rules, or detecting unauthorized connections to the Cable Communications System.
31. "Nonbroadcast Signal" means a signal that is transmitted . . .
32. "Pay-Cable" or "Pay-Television" means the delivery to Subscribers, over
the Cable Co,)~i)unications System, of television signals for a fee or charge to
Subscribers over and above the charge for Basic Service, or a per program, per
channel, or other subscription basis.
38. "Reasonable Notice" shall be written notice addressed to the Grantee at
its principal office or such other office as the Grantee has designated to the
Grantor as the address to which notice should be transmitted to it, which notice
shall be certified and postmarked not less than seven days prior to that day in
which the party giving such notice shall commence any action which requires the
giving of notice. In computing said seven days, Saturdays, Sundays and holidays
recognized by the Grantor shall be excluded.
39. "Reasonable Order" shall be written orders not excessive or extreme
as to costs or time to comply, governed by sound thinking.
42. "Sale" shall include any sale, exchange, barter or offer for
sale.
45. "Service Area" or "Franchise Area" means the designated geographic area
in which the Grantee is authorized or obligated to construct a Cable System as
provided in the Franchise Agreement.
46 "State" means the State of California.
47. "Street" includes each of the following which . . .
48. "Subscriber" or "Customer" means any person, firm, corporation, or
other entity who or which elects to subscribe to, for any purpose, a service
provided by the Grantee by means of or in connection with the Cable
Communinications System.
Ordinance No. 298
Page 4
49. "Substantially Completed" means that sufficient distribution facilities
have been installed by the Grantee so as to permit the offering of full network
service to at least ninety percent of the potential subscribers in the Service
Area which have not already been served by another franchised cable operator.
II. GRANT OF FRANCHISE
5.60.020 Grant. A. In the event that the Grantor shall grant to the
Grantee a nonexclusive, revocable Franchise to construct, operate, maintain, and
reconstruct, a Cable Communications System within the Franchise Area, said
Franchise shall constitute both a right and an obligation to provide the services
of a Cable Communications System as required by the provisions of this chapter
and the Franchise Agreement.
C. Any Franchise granted under the terms and conditions contained herein
shall be consistent with general law and/or statutory requirements, which are
incorporated by this reference as if fully set forth herein.
E. Any Franchise granted is hereby made subject to the general ordinance
provisions now in effect or hereafter made effective.
F. Nothing in the Franchise shall be deemed to waive the requirements of
the various codes and ordinances of the Grantor regarding permits, fees to be
paid or manner of construction; provided, however, that in the event of any
conflict between the terms of this chapter and the Franchise, the terms of the
Franchise shall control.
5.60.025 Service Area. The Grantor may grant a Franchise for all or any
defined portion of the City. The Service Area shall be the entire territory
defined in the Franchise Agreement. The Initial Service Area shall be that por-
tion of the Service Area scheduled to receive initial service, as stated in the
Franchise Agreement.
5.60.030 Use of Public Streets and Ways. For the purpose of operating and
maintaining a Cable Communications System in the Franchise Area, and subject to
the provisions of Section 5.60.290, the Grantee may erect, install, construct,
repair, replace, reconstruct, and retain in, on, over, under, upon, across, and
along the public streets and ways within the Franchise Area such wires, cables,
conductors, ducts, conduits, vaults, manholes, amplifiers, appliances,
pedestals, attachments, and other property and equipment as are necessary and
appurtenant to the operation of the Cable Communications System. Prior to
construction or alteration, however, the Grantee shall in each case file plans
with the appropriate Grantor agencies and local utility companies, and receive
written approval before proceeding.
5.60.035 Duration. The term of any Franchise and all rights, privileges,
obligations and restrictions pertaining thereto shall be as specified in the
Franchise Agreement unless terminated sooner as hereinafter provided. The
effective date of the Franchise shall be the date of adoption of the resolution
by the Grantor approving the Franchise Agreement.
Ordinance No. 298
Page 5
5.60.045 Transfer of Ownership or Control--Transfer of Franchise. Any
Franchise granted hereunder shall be a privilege to be held for the benefit of
the public, Said Franchise cannot in any event be sold, transferred, leased,
assigned or disposed of, including but not limited to, by forced or voluntary
sale, merger, consolidation, receivership, or other means without the prior con-
sent of the Grantor, and then only under such conditions as the Grantor may
establish. Such consent as required by the Grantor shall, however, not be
unreasonably withheld.
5.60.050 Transfer of Ownership or Control--Ownership or Control.
B. Every change, transfer, or acquisition of control of the Grantee shall
make the Franchise subject to cancellation unless and until the Grantor
shall have consented thereto, which consent will not be unreasonably withheld.
C. For the purpose of determining whether it shall consent to . . .
D. In seeking the Grantor's consent to any change in . . .
3. To establish to the satisfaction of the Grantor that the financial
and technical capability of the proposed transferee is such as shall enable it
to maintain and operate the System for the remaining term of the Franchise under
the existing Franchise terms~
a. Any financial institution having a pledge of the Franchise or its
assets for the advancement of money for the construction and/or operation of the
Franchise shall have the right to notify the Grantor that it or its designee
satisfactory to the Grantor will take control and operate the Cable
Communications System, in the event of a Grantee default in its financial obli-
gations. Further, said financial institution shall also submit a plan for such
operation that will ensure continued service and compliance with all Franchise
requirements during the term. The financial institution shall not exercise
control over the System for a period exceeding one year unless extended by the
Grantor in its discretion and during said period of time it shall have the right
to petition the Grantor to transfer the Franchise to another Grantee. If the
Grantor finds that such transfer after considering the legal, financial,
character, technical and other public interest qualities of the applicant are
satisfactory, the Grantor will transfer and assign the rights and obligations of
such Franchise as in the public interest. The consent of the Grantor to such
transfer shall not be unreasonably withheld.
c. In the absence of extraordinary circumstances, the grantor will not
approve any transfer or assignment of the Franchise until the System is substan-
tially completed.
5.60.055 Franchise Renewal--Generally. A. Nothing in any Franchise
Agreement shall require renewal by the Grantor after the term of the Franchise
has expired, nor shall renewal be presumed as a matter of vested interest,
except to the extent specified in the Cable Communications Policy Act of 1984
{"Cable Act").
Ordinance No. 298
Page 6
5.60.065 Police Powers. A. tn accepting a Franchise, the Grantee
acknowledges that its rights thereunder are subject to the po]ice power of the
Grantor to adopt and enforce general ordinances necessary to the safety and
welfare of the public; and Jt agrees to comply wJth all applicable general laws
and ordinances enacted by the Grantor pursuant to such power.
5.60.070 Franchise Fee--Annual Franchise Payment. A. A Grantee of a
Franchise hereunder shall pay to the Grantor an annual fee in an amount as
designated in the Franchise Agreement.
B. Such payment shall be in additlon to any other . . .
C. tn the event of a dispute, the Grantor, if it so requests shall be fur-
nished a statement, by a Certlfied Public Accountant, reflecting the total
amounts of Gross Annual Revenues and all payments, deductions and computations
for the period covered by the payment.
5.60.080 Franchise Fee--Failure to Hake Required Payment--Payment
Requirements. tn the event that any Franchise Fee is not paid within five days
of the dates specified herein, the Grantee shall pay as additional compensation:
B, A sum of money equal to equal to one percent of the amount due in order
to defray those additional expenses and costs incurred by the Grantor by reason
of delinquent payment.
C. Franchise Fees shall be paid quarterly. Each of these payments shall be
due and payable no later than forty-five days after the end of the quarter.
Each payment shall be accompanled by a brief report showing the basis for the
payment and such other relevant facts as may be required by the Grantor. The
last quarter's payment shall be accompanled by a report showing the quarterly
gross revenues, the total annual revenues, the basls of the computation and such
other relevant facts as may be required by the Grantor.
5.60.085 Forfeiture or Revocation--Grounds for Revocation. The Grantor
reserves the right to revoke any Franchise granted hereunder and rescind all
rights and prlvileges associated with the Franchise in the following cir-
cumstances, each of which shall represent a default and breach under this
chapter and the Franchise grant:
A. [f the Grantee should default in the performance of any of its signifi-
cant and material obligations under this chapter or under such documents,
agreements and other terms and provisions entered into by and between the
Grantor and the Grantee and not cure such default within a reasonable time after
notice to Grantee;
E. [f the Grantee ceases to provlde servlces for a significant period of
time for any reason within the control of the Grantee over the Cable
Communlcation System. The Grantee shall not be declared at fault or be subject
to any sanction under any provision of this chapter in any case in which perfor-
mance of any such provision is prevented for reasons beyond the Grantee's
control. A default shall not be deemed to be beyond the Grantee's control
if con~itted by a corporation or other business entity in which the Grantee
holds a controlling interest, whether held directly or Jndirectly;
Ordinance No. 298
Page 7
F. If the Grantee evades any of the provisions of this chapter or the
Franchlse Agreement or practices any fraud or deceit upon the Grantor;
5.60.090 Forfeiture or Revocation--Procedure Prior to Revocation. A. To
initiate revocation of a Franchise, Grantor shall make written demand that the
Grantee comply wlth any such requirement, limitation, term, condition, rule or
regulation or correct any action deemed cause for revocation. [f the failure,
refusal or neglect of the Grantee continues for a period of thirty days
following such written demand, the Grantor may place its request for termination
of the Franchise upon a regular Council meeting agenda. The Grantor shall cause
to be served upon such Grantee, at least ten days prior to the date of such
meeting, a written notice of this intent to request such termination, and the
time and place of the meeting, notice of which shall be published at least once,
ten days before such meeting in a newspaper of general circulatlon within the
Franchise Area.
D. If the Grantor determines such failure, refusal or neglect by the
Grantee was wlthout just cause, then the Grantor may, by resolution, declare
that the Franchise of such Grantee shall be terminated and security fund and
bonds forfeited unless there be a compliance by the Grantee within such
period as the Grantor may fix.
E. The decision of the Grantor shall be in writing and the reasons
stated therefore set forth with findings supported by evidence within the record
of proceedings.
5.60.100 Procedures in the Event of Termination . . .
C. The liability, indemnity and insurance, and the security fund and bonds
provided for therein shall continue in full force and effect during the period o
removal and until full compliance by the Grantee with the terms and conditions
of this chapter.
5.60.105 Procedures in the Event of Termination or Expiration--Restoration
by Grantor, Reimbursement of Costs. A. In the event of a failure by the Gran-
tee to complete any work required by Sections 5.60.095 and/or 5.60.100, or any
other work required by the Grantor by law or ordinance within the time as may be
established and to the satisfaction of the Grantor, and after seven days notice,
the Grantor may cause such work to be done and the Grantee shall reimburse the
Grantor the cost thereof wlthin thirty days after receipt of an itemized list of
such costs or the Grantor may recover such costs through the security fund or
bonds provided by the Grantee. The Grantor shall be permitted to seek legal and
equitable relief to enforce the provisions of this chapter.
5.60.110 Procedures in the Event of Termlnation or Expiration--Extended
Operation. A. Upon either the expiratlon or revocatlon of a Franchise, the
Grantor may extend the term of such Franchise and may require the Grantee to
continue to operate the Cable CoFm~unicatlons System for a defined period of time
not to exceed twenty-four months from the date of such expiration or revocation.
Ordinance No, 298
Page 8
5.60.120 Receivership and Foreclosure. A. Any Franchise granted
pursuant hereto shall, at the option of the Grantor, cease and term-
inate one hundred twenty days after the appointment of a receiver or
receivers or trustee or trustees to take over and conduct the business of the
Grantee whether in a receivership, reorganization, bankruptcy or other action or
proceeding unless such receivership or trusteeship shall have been vacated
prior to the expiration of said one hundred twenty days, or unless:
1. Such receivers or trustees shall have, within one hundred twenty
days after their election or appointment, fully complied with all the terms and
provisions of this chapter and the Franchise granted pursuant hereto, and the
receivers or trustees within the one hundred twenty days shall have remedied all
defaults under the Franchise; and
B. In the case of a foreclosure or other judicial sale of the plant, pro-
perty and equipment of the Grantee, or any part thereof, the Grantor may serve
notice of termination upon the Grantee and the successful bidder at such sale,
in which event the Franchise and all rights and privileges of the Grantee
hereunder chapter shall cease and terminate thirty days after service of such
notice, unless:
1. The Grantor shall have approved the transfer of the Franchise
Agreement, as and in the manner in this chapter provided; and
5.60.125 Franchise Required. No Cable Cor~nunications System shall be
allowed to occupy or use the streets in the City or be allowed to operate
without a Franchise in accordance with the provisions of this chapter.
III. REGULATION OF FRANCHISE
5.60.135 Regulatory Authority. The Grantor shall exercise appropriate
regulatory authority under the provisions of this chapter and applicable law.
5.60.140 Regulatory Responsibility.
B. Coordinating of the operation of government and educational channels;
C. Providing technical, progran~ing and operational support to public
agency users, such as government departments, schools and public health care
institutions;
F. Analyzing the possibility of integrating cable CO, m.unications with
other local, state or federal telecom)wi)unications networks.
5.60.155 Initial Rates. A. The Grantee shall establish initial rates
that must be applied fairly and uniformly to all Subscribers in the Franchise
Area for its services except as provided below.
B. In the event that Grantee's Franchise Area, or any portion thereof, is
actually overbuilt by another franchised or licensed cable operator, or other
person or entity who provides the equivalent of cable television services,
Ordinance No. 298
Page 9
Grantee may, but shall not be required to, reduce its rate schedule for those
Subscribers within the overbuild area without being required to reduce Its
rate(s) throughout the entirety of its Service Area; provided, however,
Grantee's published rates shall constitute the maximum rate which can be
charged to any Subscriber within Grantee's Service Area irrespective of the
presence of overbuild competition or the lack thereof.
C. Grantee may, but shall not be required to, adopt promotional policies
which reduce rates upon all or a portion of the services offered by Grantee.
Grantee shall give notice of said promotional policies to the Grantor.
Grantee's promotional policies may be implemented or changed by Grantee from
time to time without the consent of the Grantor; provided, however, Grantee's
promotional policies, until changed, shall be applied uniformly throughout an
identifiable portion of the Grantee's entire Service Area.
5.60.160 Rate Change Procedure. A. The Grantee may establish its own
rates and charges for services rendered to Subscribers under this chapter.
B. The Grantor may recapture its rate-making authority at any time as is
allowed by applicable law.
C. When the Grantee elects to increase its rates it shall notify, in
writing, the Grantor, a minimum of forty-five calendar days before the increase
is scheduled to take effect.
5.60.175 Rate Charge Procedure--No Consideration Beyond Schedule. The
Grantee shall receive no consideration whatsoever for or in connection with its
provision of service to its Subscribers other than as filed with the Grantor.
5.60.200 Access Channel Management--Intent. It is the intent of the
Grantor to ensure that Public Access Channels provided for in any Franchise
Agreement, shall be managed in the best public interest, so that programming on
such channels will be free of censorship, open to all residents, and available
for all forms of public expression, community information and debate of public
issues. Pursuant to these objectives, the Grantor may delegate the respon-
sibility for nonregionally oriented Public Access Channel management to a
nonprofit entity which may include, but not be limited to, any of the following:
5.60.205 Access Channel Management--Functions. The entity designated to
manage the Public Access Channels shall have the following functions:
A. Responsibility for program production for and management of the Public
Access Channel. Public Access Channels may include government and educational
access channels, as designated in the Franchise Agreement;
B. To assure that the Public Access Channels are made available to all
residents of the Franchise Area on a nondiscriminatory, first-come, first-served
basis;
C. To assure that no censorship or control over program content of the
Public Access Channels exist, except as necessary to comply with FCC prohibition
of material that is obscene, or to prevent commercial advertising or conduct a
lottery;
Ordinance No. 298
Page 10
D. To devise, establish, and administer all rules, regulations, and proce-
dures pertaining to the use and scheduling of the public, education, and govern-
ment channels;
I. To perform such other functions relevant to the Public Access Channels
as may be appropriate;
J. To establish budgets on an annual basis, and utilize funds and resources
received from the Grantor or the public usage entity designated in Section
5.60.145, for the purpose of access programming.
K. To solicit and receive Grantee's input in regard to these functions.
5.60.210 Access Channel Management--Access Rules. The access management
entity shall complete a set of rules for the use of the Public Access Channels
which shall be promptly forwarded to the Grantor. The rules shall be prepared
in cooperation with the Grantee, and confirmed by a contractual agreement
between the access management entity and the Grantee. The rules shall, at a
minimum, provide for:
5.60.215 Access Channel Management--Access Management Entity Reports to
Grantor. The access management entity shall provide a report to the Grantor, at
least annually, indicating achievements in community-based programming and ser-
vices.
IV. GENERAL FINANCIAL AND INSURANCE PROVISIONS
5.60.220 General Provisions. The Grantee shall be subject to the finan-
cial and insurance provisions described in this section; provided, however,
that inconsistent provisions of the Franchise Agreement shall control.
5.60.225 Performance Bond. A. The Grantee shall, at least thirty days
prior to the commencement of construction or reconstruction, file with the
Grantor a performance bond in the amount specified in the Franchise Agreement in
favor of the Grantor and any other person who may be entitled to damages as a
result of any occurrence in the operation or termination of the Cable
Communications System operated under the Franchise Agreement, and including the
payments required to be made to the Grantor hereunder.
B. Such bond as contemplated herein shall be in the form and with a company
approved by the Grantor and shall among other matters cover the cost of removal
of any properties installed by the Grantee in the event said Grantee shall
default in the performance of its Franchise obligation.
C. In no event shall the amount of said bond be construed to limit the
liability of the Grantee for damages.
D. Grantor, at its sole option, may waive this requirement, or permit
consolidation of the construction bond with the performance bond and security
fund specified in Section 5.60.230.
Ordinance No. 298
Page 11
5.60.230 Security Fund. A. Within thirty days after the effective date
of the Franchise, the Grantee shall deposit into a bank account, established by
the Grantor and maintain on deposit through the term of the Franchise, or
establish an irrevocable letter of credit, the sum specified in the Franchise
Agreement, as security for the faithful performance by it of all the provisions
of the Franchise, and compliance with all orders, permits and directions of any
agency of the Grantor having jurisdiction over its act or defaults under this
chapter, and the payment by the Grantee of any claims, liens and taxes due the
Grantor which arise by reason of the construction, operation or maintenance of
the System. The security funds or letter of credit funds may be assessed by the
Grantor for purposes including, but not limited to, the following:
C. Within thirty days after notice to it that any amount has been withdrawn
by the Grantor from the security fund pursuant to subsection A of this section,
the Grantee shall deposit a sum of money sufficient to restore such security
fund to the original amount or increase the letter of credit to accomplish the
same,
E. The Grantee shall be entitled to the return of such security fund, or
portion thereof, as remains on deposit or release the letter of credit, as
appropriate, no later than ninety days after the expiration of the term of the
Franchise; provided, that there is then no outstanding default on the part of
the Grantee.
V. DESIGN AND CONSTRUCTION PROVISIONS
5.60.245 System Design. The Cable Co~unications System shall be
constructed in accordance with the design requirements contained in the
Franchise Agreement.
5.60.250 Geographical Coverage. The Grantee shall design and construct the
System in such a manner as to have the eventual capability to pass by every
single-family dwelling unit, multiple-family dwelling unit, school and public
agency within the Service Area of the Franchise. Service shall be provided to
Subscribers in accordance with the schedules and line extension policies spe-
cified in the Franchise Agreement. System construction and provision of service
shall be nondiscriminatory, and the Grantee shall not delay or defer service to
any section of the Franchise Area on the grounds of economic preference.
5.60.260 System Construction Schedule.
B. The Grantee shall provide a detailed constructlon plan indicating
progress schedule, area construction maps, test plan, and projected dates for
offering service to any new areas or for reconstructing the Cable System. In
addition, the Grantee shall update this information on an annual basis.
5.60.265 Remedies for Delay in Constructlon. The Grantor may at its sole
option, apply any or all of the following remedies in the event of material and
substantial delays in system construction or reconstruction:
C. Termination of the Franchise within one year after award of the
Franchise if the Grantee has failed to initiate system construction or
reconstruction;
Ordinance No. 298
Page 12
D. Termlnatlon of the Franchise for other material and substantial delays
in completing system construction exceedlng eighteen months. Any remedies
applied shall be in accordance with the procedures contained in Sections
5.60.430 through 5.60.445.
5.60.285 Underground at Multiple-Dwelling Units. In cases of multiple
dwelling units serviced by aerial utllltles, the Grantee shall make every
reasonable effort to minimize the number of individual aerial drop cables giving
preference to undergrounding of multiple drop cables between the pole and the
dwelling unit.
5.60.290 Street Occupancy. A. The Grantee shall utilize existing poles,
conduits and other facilities whenever possible, and shall not construct or
Install any new, different, or additional poles, conduits, or other facilities
whether on public property or on privately owned property until a permit or the
written approval of the grantor is obtained. However, no location of any pole
or wire holding structure of the Grantee shall be a vested interest and such
poles or structures shall be removed or modified by the Grantee at its own
expense whenever the grantor determines that the public convenience would be
enhanced thereby whether the Grantor is acting in its governmental or
proprietary capacity.
D. Grantee shall, at its own expense, and in a manner approved by the
Grantor, restore to its previously existing condition any public right-of-way
which is damaged or disturbed as a result of its operatlons or construction on
its behalf.
G. The Grantee at its expense shall protect, support, temporarily discon-
nect, relocate, or remove any property of the Grantee when, in the opinion of
the Grantor the same is required by reason of traffic conditions, public safety,
street vacation, freeway or street grade, installation of sewers, drains, water-
pipes, power line, signal line, transportation facilities, tracks, or any other
types of structure or improvements by governmental agencies, or any other struc-
ture or public improvement, including, but not limited to, movement of
buildings, redevelopment, or any general program under which the Grantor shall
undertake to cause any such properties to be located beneath the surface of the
ground. Nothing under this chapter shall be deemed a taking of the property of
the Grantee and the Grantee shall be entitled to no surcharge by reason of
anything under this chapter.
5.60.295 Construction and Technical Standards - - Generally.
5. Construction Standards and Requirements. All of the Grantee's
plant and equipment, including but not limited to the antenna site, head-end and
distribution system towers, house connections, structures, poles, wire, cable,
coaxial cable, fixtures and appurtenances shall be installed, located, erected,
constructed, reconstructed, replaced, removed, repaired, maintained and operated
in accordance with good engineering practices, performed by experienced main-
tenance and construction personnel so as not to endanger or interfere with
improvements the Grantor may deem reasonably proper to make, or to interfere in
any manner with the reasonable rights of any property owner, or to unnecessarily
hinder or obstruct pedestrian or vehicular traffic.
Ordinance No. 298
Page [3
6. Safety and Nuisance Requirements. The Grantee shall at all times
employ ordinary care and shall install and maintain in use commonly accepted
methods and devices preventing failures and accidents which are likely to cause
damage, injury or nuisance to the public.
C. Test and Compliance Procedures.
1. Frequency of testing: Grantee shall test the System monthly, on a
calendar basis, with no longer than 6 weeks, nor less than 3 weeks between
monthly tests.
2. Equipment calibration: All frequency and/or signal level sensitive
pieces of test equipment used to perform the monthly tests described herein
shall be calibrated, as evidenced by a current certificate of calibration issued
by a competent independent calibration facility with traceability of calibration
for each piece of equipment to the National Bureau of Standards. In lieu of the
requirement for independent calibration, Grantee may at its option, certify
that its equipment is calibrated and, at the Grantor's request, provide records
to demonstrate the traceability of such calibration for each piece of equipment
to the National Bureau of Standards.
3. Test location: a. The monthly tests shall be made at the output of
the {electrically) furthest Subscriber tap on any distribution leg checked.
b. The specific test points checked shall be rotated from month to
month so that no test point shall be revisited during a monthly test check until
all other distribution end-of-lines have been checked, except as provided for
below.
c. The output of the Subscriber tap shall be connected to the input of
the measurement equipment via a 1DO' RG-6 jumper to simulate a typical
Subscriber drop, and the signal levels measured, recorded, and reported to the
Grantor prior to making any corrective actions at the subject test location, or
on the trunk and distribution legs feeding the subject test location.
4. Tests to be performed: The following tests shall be performed at
five test locations of the outside plant system within the City of Poway {For
the purposes of the following subsections, a channel shall be considered as
being "activated" if Grantee carries on that channel programming of any nature
which is normally available to one or more Subscribers within the System.)
a. Video carrier levels on all activated channels. Unit of reporting
assessment shall be dBmV.
b. Aural carrier levels on all activated channels. Unit of reporting
measurement shall be dBmV.
c. Carrier-to-noise measurement on no less than one activated channel.
Unit of reporting measurement shall be a positive number, expressed in dB rela-
tive to the reference carrier.
d. Low frequency distortion {"Hum") measurement on no less than one
activated channel with modulation removed, or a substitute unmodulated carrier
of equal level to regular video channels. Unit of reporting measurement shall
be the percentage of Hum relative to the reference unmodulated carrier.
Ordinance No. 298
Page 14
e. Composite distortion measurement on no less than one activated
channel made by measuring the difference between the normal video carrier
level, and the highest level distortion product(s) falling within the video
bandwidth with the normal video carrier removed, if any. Unit of reporting
measurement shall be a negative number, expressed in dB relative to the
reference video carrier.
5. Report Scope: The report required by subsection (6) below shall
contain clear and sufficient information so that the specific test point loca-
tion may be accurately determined from the report. At a minimum, the test
report for each location shall lnclude the following:
a. Tap value and number of ports;
b. Grantee map page and grid, or Thomas Brother's map page and grid;
c. Trunk and line extender cascade count;
d. Street address (or other suitable physical description);
e. Date of testing;
f. Time of testing;
g. List of all frequency and/or signal level sensitive equipment by
manufacturer, model number, and serial number;
A statement indicating that the all of the equipment generally
described in subsection (g) of this section meets the calibration
requirements of subsection {2), above;
Name (printed), and signature of person actually performing the
the tests described above, for the purpose of certifying the
accuracy of the test point report.
6. Report Submission to Grantor: The test point reports shall be sub-
mitted to the Grantor {either in person, or via prepaid U.S. first class mail),
at a location designated by the Grantor from time to time, no later than four-
teen calendar days after the tests are made.
7. Special Retesting of Test Point Locations: In the event that a
test point fails to meet any of the technical parameters described elsewhere {in
the body of the Franchise), shall, in a timely manner, correct the deficiency
causing the test point to fail upon initial inspection. Within 6 weeks after
corrections are completed, Grantee shall demonstrate to the Grantor that, at a
minimum, all parameters described in subsection {a) above meet the technical
parameters described elsewhere in the Franchise Agreement. Compliance shall be
evidenced by retesting the subject test location in accordance with the test
procedures listed above, and by submitting to the Grantor a special retest
report containing the information described in subsection {5).
Ordinance No, 298
Page 15
5.60.300 Construction and Technical Standards--Areawide Interconnection.
A. Interconnection Required. If required by the Franchises Agreement, the
Grantee shall interconnect Access Channels of the Cable Comunications System
with any or all other Systems operated pursuant to Franchises in contiguous
areas within the City, upon the directive of the Grantor. Interconnection of
systems shall permit interactive transmission and reception of program material,
and may be done by direct cable connection, microwave link, satellite, or other
appropriate method.
B. Interconnection Procedure. Upon receiving the directive of the Grantor
to interconnect, and if feasible, the Grantee shall ir~ediately initiate nego-
tiations with the other affected System or Systems. The cost shall be borne by
both or all Grantees, in the proportion of number of channels received to
total number of channels transmitted and received, under the assumption that
benefits accrue primarily through receipt of additional channels.
D. Initial Technical Requirements to Assure Future Interconnection
Capability.
1. All Cable Communications Systems receiving Franchises to operate
within the City shall use the same frequency allocations for commonly provided
television signals so far as is technically and economically feasible.
VI. SERVICE PROVISIONS
5.60.305 Services to be Provided. The Grantee shall provide, as a mini
mum, the general category of services listed in the Franchise Agreement.
Services shall not be reduced without prior approval of the Grantor.
5.60 310 Basic Television Service (BTS). The "Basic Television Service"
shall include the local broadcast signals, distant television broadcast signals,
the imported nonbroadcast signals, and the provision of all other cablecast
open-channel signals as specified in the Franchise Agreement. This service
shall be provided to all Subscribers at the established PRBTS monthly subscrip-
tion rates.
5.60.325 Additional Subscriber Services. "Additional Subscriber
Services," not included in the BTS and BSRS services specified above, may be
provided, either within the basic subscription rates, or on a premium basis,
subject to applicable FCC regulations.
5.60.330 Local Origination Channel(s). The Grantee shall operate the
cablecasting studios on a high-quality, professional basis for the purpose of
providing cablecast programming responsive to local needs and interests. The
emphasis for the local origination channel(s) shall be on pro-viding programming
that is unavailable to viewers on broadcast television channels.
5.60.350 Public Access(es) (Closed-Circuit). If the Cable Communications
System includes a closed-circuit institutional network, and if required by the
Franchise Agreement, the Grantee shall make at least three two-way channels
available for local government programs, educational programs, and public ser-
vice programs use at no charge. The Public Access two-way channels shall be
managed and operated by the access management entity.
Ordlnance No. 298
Page 16
5.60.355 Leased Access Channel. Grantee shall make available Leased Access
channels, on a nondiscriminatory basis as required by law. All Leased Channel
Service revenues shall be included in Gross Annual Revenues subject to the
Franchise Fee.
VII. OPERATION AND MAINTENANCE
5.60.365 Open Books and Records. The Grantor shall have the right to
inspect at any time during normal business hours, all books, records, maps,
plans, financial statements, service complaint logs, performance test results
and other like materials of the Grantee which reasonably relate to the operation
of the Franchise and the regulatory function of the Grantor in question, and are
maintained at the office within the Franchise Area. If any of such books or
records are not kept in the local office, or upon reasonable request made
available to the Grantor, and if the Grantor shall determine that an examination
of such records is necessary or appropriate to the performance of any of the
Grantor's duties, then all reason-able travel and maintenance expense
necessarily incurred in making such examina-tion shall be paid by the Grantee.
5.60.370 Records required. A. In any event the Grantee shall at all
times maintain:
2. A full and complete set of plans, records and "as-builts" maps
showing the exact location of all Cable Communications system equipment
installed or in use in the Franchise Area, exclusive of Subscriber Service
drops.
5.60.375 Maintenance and Complaints. A. The Grantee shall maintain an
office in the Service Area or at other location as specified to be approved by
Grantor in the Franchise Agreement which shall be open during all usual business
hours, have a publicly listed toll-free telephone, and be so operated to receive
Subscriber complaints and requests for repairs or adjustments on a twenty-four-
hour-a-day basis. Awritten log shall be maintained listing all complaints and
their disposition.
C. The Grantee shall maintain a repair force of technicians capable of
responding to Subscriber complaints or requests for service within twenty-four
hours after receipt of the complaint or request. No charge shall be made to the
Subscriber for this service if the complaint is not the result of Subscriber
negligence or equipment misuse.
5.60.380 Rights of Individuals. A. Subject to applicable law, the
Grantee shall not deny service, deny access, or otherwise discriminate against
Subscribers, channel users, or general citizens on the basis of race, color,
religion, national origin, age or sex. Grantee shall comply at all times
with all other applicable federal, state and local laws and regulations, and all
applicable executive and administrative orders relating to nondiscrimination
which are hereby incorporated and made part of this chapter by reference.
B. Grantee shall strictly adhere to the applicable equal employment
opportunity requirements of the FCC, state and local regulations, and as amended
from time to time.
Ordinance No. 298
Page 17
C. No signals of a Class IV cable con~nunications channel shall be
transmitted from a subscriber teFminal for purposes of monitoring individual
viewing patterns or practices without the express written permission of the
Subscriber. The request for such permission shall be contained in a separate
document with a prominent statement that the Subscriber is authorizing the per-
mission in full knowledge of its provisions. Such written permission shall be
for a limited period of time not to exceed one year, which shall be renewable at
the option of the Subscriber. No penalty shall be invoked for a Subscriber's
failure to provide or renew such an authorization. The authorization shall be
revocable at any time by the Subscriber without penalty of any kind whatsoever.
Such authorization is required for each type or classification of Class IV cable
television activity planned; provided however, that the Grantee shall be
entitled to conduct system-wide or individually addressed "sweeps" for the pur-
pose of verifying system integrity, controlling return-path transmission,
ensuring technical standards compliance, securing the cable system, verifying
basic service customers or billing for pay services.
D. The Grantee and its agents or employees shall comply with Section 631
of the Cable Act.
E. Fairness of Accessibility. The entire System of the Grantee shall be
operated in a manner consistent with the principle of fairness and equal
accessibility of its facilities, equipment, channels, studios and other services
to all citizens, businesses, public agencies and other entities having a legiti-
mate use for the network, and no one shall be arbitrarily excluded from its use.
Allocation of use of said facilities shall be made according to the rules or
decisions of the Grantee and any regulatory agencies affecting the same.
5.60.385 Continuity of Service Mandatory. A. It shall be the right of all
Subscribers to continue receiving service insofar as their financial and other
obligations to the Grantee are honored. In the event that the Grantee elects to
overbuild, rebuild, modify, or sell the System, or the Grantor gives notice of
intent to terminate or fails to renew the Franchise, the Grantee shall act so as
to ensure that all Subscribers receive continuous, uninterrupted service
regardless of the circumstances. In the event of a change of Grantee, or in the
event a new operator acquires the System, the Grantee shall cooperate with the
Grantor, new Grantee or operator in maintaining continuity of service to all
Subscribers. During such period, the Grantee shall be entitled to the revenues
for any period during which it operates the System, and shall be entitled to
reasonable costs for its services when it no longer operates the System.
5.60.390 Grantee Rules and Regulations. The Grantee shall have the
authority to promulgate such rules, regulations, terms and conditions governing
the conduct of its business as shall be reasonably necessary to enable the
Grantee to exercise its rights and perform its obligations under the Franchise,
or this chapter, and to assure an uninterrupted service to each and all of its
customers; provided, however, that such rules, regulations, terms and conditions
shall not be in conflict with the provisions of this chapter or applicable state
and federal laws, rules and regulations.
Ordinance No. 298
Page 18
5.60.395 Tenant Rights. The Grantee shall be required to provide service
to tenants In Individual unlts of a multlple housing fac111ty (unless such faci-
lity is served under a bulk b1111ng agreement provldlng for alternative tiers of
servlces) wlth all services offered to other dwelling units within the Franchise
Area, so long as the owner of the fac111ty consents in wrlttng, if requested by
the Grantee, to the following:
A. To Grantee's providing of the service to units of the facility without
payment to such owner;
VIII. RIGHTS RESERVED TO THE GRANTOR
5.60.400 Rights to Purchase the System. The Grantor may, if and to the
extent permitted by applicable laws and regulations, in any lawful manner and
upon the payment of compensation as required and determined by applicable law,
lawfully purchase, condemn, acquire, and take over
and hold the Franchise, the property and plant of the Grantee in whole or in
part; provided, however, that nothing in this section shall create or be
construed to create any such rights in Grantor (including any right of first
refusal) in addition to or different from those, if any, created by applicable
laws and regulations.
5.60.405 Right of Inspection of Records. A. The Grantor shall have the
right to inspect all books, records, maps, plans, financial statements, and
other like materials of the Grantee during normal business hours which are
reasonably related to the Grantor's regulating powers and functions hereunder.
The Grantor may inspect all such records required in this section at the offices
of the Grantee and the Grantee shall make such records available to the Grantor.
If the Grantor needs copies of such information in order to complete its examin-
ation of the Grantee's operation, the Grantee may make available such copies of
the books and reports that the Grantor is requesting in order to complete the
Grantor's examination of the Grantee's operation. In~nediately upon completion
of such review, the Grantor shall return all such materials to the Grantee.
5.60.410 Right of Inspection of Construction. The Grantor shall have the
right to inspect all construction or installation work performed subject to the
provisions of the Franchise and to make such tests as it shall find necessary to
ensure compliance with the terms of the chapter and other pertinent provisions
of law.
5.60.420 Right to Require Removal of Property. At the expiration of the
term for which the Franchise is granted, or upon its revocation or expiration,
as provided for herein, the Grantor shall have the right to require the Grantee
to remove, at its own expense, all portions of the Cable Communications System
from all streets and public ways within the Franchise Area.
X. FRANCHISE VIOLATIONS
5.60.430 Remedies for Franchise Violations. If the Grantee fails to per-
form any significant and material obligation under the Franchise, or fails to do
so in a timely manner, the Grantor may at its option, and in its sole discre-
tion:
Ordinance No. 298
Page 19
A. Assess against the Grantee monetary damages up to the llmits
established In the Franchise Agreement or this chapter for material Franchlse
violations, which the Grantee agrees to pay, said assessment to be levied
against the security fund, hereinabove provlded and collected by the Grantor
in~nediately upon said assessment. Such assessment shall not constitute a waiver
by the Grantor of any other right or remedy it may have under the Franchise or
under applicable law, including without limitation, its right to recover from
the Grantee such damages, losses, costs and expenses, including reasonable
attorney fees actually incurred, as may have been suffered or incurred by the
Grantor by reason of or arising out of such breach of the Franchise. This pro-
vision for assessment of damages is intended by the parties to be separate and
apart from the Grantor's right to enforce the provislons of the construction and
performance bonds provided for in Artlcle tV of thls chapter, and is intended to
provide compensation to the Grantor for actual damages.
B. For violations considered by the Grantor to have degraded the quality
of service, order and direct the Grantee to issue rebates or reduce its rates
and/or charges to Subscribers, in amounts specified in this chapter or the
Franchise Agreement to provide monetary relief substantially equal to the
reduced quality of service resulting from the Grantee's failure to perform.
C. Terminate or shorten the Franchise period, . . .
D. No remedy shall be imposed by the Grantor against the Grantee for any
violation of the Franchise without the Grantee being afforded due process of
law, as provided for in Section 6.60.435. Grantor may, in its sole judgment and
discretion, impose any of all of the above enumerated measures against the
Grantee, which shall be in addition to any and all other legal or equitable
remedies it has under this Chapter or under any applicable law.
5.60.435 Procedures for Remedying Franchises Violations. In the event that
the Grantor determines that the Grantee has violated any provision of the
Franchise, any rule or regulation promulgated hereto or any applicable federal,
state, or local law, the Grantor may make a written demand on the Grantee that
it remedy such violation. If the violation, breach, failure, refusal, or
neglect is not remedied to the satisfaction of the Grantor within thirty days
following such demand, the Grantor shall determine whether or not such violation,
breach, failure, refusal, or neglect by the Grantee was excusable or inexcusable,
in accordance with the following procedure:
C. If, after notice is given and, at the Grantee's option, a full public
proceeding is held, the Grantor determines that such violation, breach, failure,
refusal or neglect was inexcusable, then the Grantor may assess a penalty or
remedy in accordance with Sections 5.60.430 and 5.60.440.
5.60.440 Force Majeure--Grantee's Inability to Perform. In the event the
Grantee's performance of any of the terms, conditions, obligations, or require-
ments of the Franchise is prevented or impaired due to any cause beyond its
reasonable control or not reasonably foreseeable, such inability to perform
shall be excused as a result thereof, provided the Grantee has notified the
Grantor in writing within thirty days of its discovery of the occurrence of such
an event. Such causes beyond the Grantee's reasonable control or not reasonably
foreseeable shall include, but shall not be limited to, acts of God and civil
emergencies.
Ordinance No. 298
Page 20
xI. REPORTS
5.60.450 Periodic Reports.
A. Grantee shall submit to the appropriate City department (as
designated by the City) on a quarterly basis, by March 31, June 30, September
30, and December 31 of each year, throughout the term of this Agreement:
B. Grantee shall submit to the appropriate City department {as
designated by the City) on an annual basis by March 31 of each year, throughout
the term of the Franchise, a progress report and map indicating in detail the
location of completed extensions, existing construction, and System expansion
and service enhancements for the forthcoming year, and a statistical summary of
the operations of the System. Such information shall include at a minimum:
The number of dwelling units passed, the number of Basic Service Subscribers,
and the rate of penetration.
C. Grantee shall submit upon request a copy of all coff~Flunications between
Grantee and the FCC, or any Federal or State regulatory agency having jurisdic-
tion over Grantee's System, to the City Manager.
D. Grantee shall permit examination by any duly authorized representative
of Grantor during all business hours of any and all maps and other such records
kept or maintained by Grantee or under its control concerning the operation,
affairs, transactions or property of Grantee at the local office as limited by
Section 5.60.405 hereof.
E. Grantee shall keep and preserve, for a period of three years, all
the records necessary to determine the amount of such Franchise Fee, including
but not limited to all business records, bank statements and copies of Federal
and State income tax returns filed by the Grantee.
F. Grantee shall conduct annual proof-of-performance tests of the System
and shall submit the results to such tests to the City's Community Services
Department within thirty days after the completion of such tests.
G. The Grantor may prepare a questionnaire; such questionnaire shall elicit
responses from Subscribers on matters such as their appraisal of the Service
they receive and their needs and interests related to cable TV services. Within
thirty days after receipt thereof, the Grantee shall mail to those Subscribers
designated by the City Manager, a copy of a questionnaire provided to the
Grantee by the City unless the Grantee submits an appeal to the City Manager
and/or the City Council. The costs associated with such questionnaires shall be
borne by the City, and responses should be addressed to the City's Community
Services Department. The Department may require such questionnaire from time to
time, as may be necessary, but in no event more than once each year.
5.60.455 Plant Survey Report. At the Grantor's sole option, the Grantee
shall submit to the Grantor an annual plant survey report which shall be a
complete survey of the Grantee's plant and a full report thereon. Said report
shall include, but not be limited to, a description and "as-built" maps of the
portions of the Franchise Area that have been cabled and have all services
Ordinance No, 298
Page 2!
available, an appropriate engineering evaluation including suitable electronic
measurements conducted in conformity with such requirements, including super-
vision, as the Grantor may prescribe. Said report shall contain sufficient
detail to enable the Grantor to ascertain that the service requirements and
technical standards of the FCC and/or the Franchise Agreement are achieved and
maintained.
5.60.470 Complaint File and Reports. An accurate and comprehensive file
shall be kept by the Grantee of any and all complaints regarding the System. A
procedure shall be established by the Grantee by the time of installation of the
System to remedy complaints quickly and reasonably to the satisfaction of the
Grantor. Complete records of the Grantee's actions in response to all
complaints shall be kept. These files and records shall remain open to the
public during normal business hours. A sun,nary of complaints, identifying the
number and nature of complaints and their disposition, in a form approved by the
Grantor, shall, upon request of the Grantor, be completed for each month and
submitted to the Grantor by the tenth day of the succeeding month.
5.60.500 Failure to Report. The refusal, failure, or neglect of the Gran-
tee to file any of the reports required, or such other reports as the Grantor
reasonably may request, after notice from grantor to Grantee, shall be deemed a
material breach of Franchise, and shall subject the Grantee to all remedies,
legal or equitable, which are available to the Grantor under the Franchise or
otherwise, unless Grantee submits in writing to Grantor reasonable explanations
for such refusal, failure, or neglect.
5.60.510 Cost of Reports. All reports and records required under this or
any other section shall be furnished at the sole expense of the Grantee.
XII. MISCELLANEOUS PROVISIONS
5.60.515 Compliance with State and Federal Laws. Notwithstanding any other
provisions of the Franchise to the contrary, the Grantee shall at all times
comply with all applicable laws and regulations of the state and federal govern-
ment or any administrative agencies thereof; provided, however, if any such
state or federal law or regulation shall require the Grantee to perform any ser-
vice, or shall permit the Grantee to perform any service, or shall prohibit the
Grantee from performing any service, in conflict with the terms of the Franchise
or any law or regulation of the Grantor, then as soon as possible following
knowledge thereof, the Grantee shall notify the Grantor of the point of conflict
believed to exist between such regulation or law and the laws or regulations of
the Grantor or the Franchise.
5.60.520 Separability -- Nonmaterial Provisions.
B. In the event that such law, rule or regulation is subsequently repealed,
rescinded, amended or otherwise changed, so that the provision hereof or thereof
which has been held invalid or modified is no longer in conflict with the law,
rules and regulations then in effect, said provision shall thereupon return to
full force and effect and shall thereafter be binding on the parties to the
Franchise Agreement, provided that the Grantor gives the Grantee thirty days
written notice of such change before requiring compliance with said provision.
Ordinance No. 298
Page 22
5.60.525 Separability-Material Provisions. A. If any material section of
this chapter or related Franchise Agreement is held to be invalid or preempted
by federal, state or county regulations or laws, the Grantor shall negotiate
with the Grantee appropriate modifications to the Franchise to provide reaso-
nable relief from such invalidity or preemption, including the payment of com-
pensating monies to either party.
B. If the parties are unable to reach agreement on such modifications,
then the dispute shall be submitted to a mutually agreeable arbitrator, in
accordance with state law, who shall determine what modifications and/or
compensating monies are appropriate.
5.60.___ Captions. The captions to sections throughout this chapter are
intended solely to facilitate reading and reference. Such captions shall not
affect the meaning or interpretation of this chapter.
5.60.535 No Recourse Against the Grantor. The Grantee shall have no
recourse whatsoever against the Grantor or its officials, boards, commissions,
agents, or employees for any loss, costs, expense, or damage arising out of any
provision or requirement of the Franchise or because of the enforcement of the
Franchise except any tortious acts.
5.60.545 Acknowledgments. A. Except as expressly provided in the
Franchise, the Grantee herein shall have no recourse whatsoever against the
Grantor for any loss, cost, or expense, for damage arising out of the provisions
or requirements of the Franchise or because of the enforcement thereof by the
Grantor, nor for the failure of the Grantor to have the authority to grant all
or any part of the Franchise excepting any tortious acts.
B. The Grantee by its acceptance of the Franchise, acknowledges that it
does so voluntarily and in reliance upon its own investigation and understanding
of the power and authority of the Grantor to grant the Franchise.
C. The Grantee by acceptance of the Franchise acknowledges that it has
not been induced to enter into the Franchise by any understanding or promise,
or other statement, whether verbal or written, by or on behalf of the Grantor or
by any other third person concerning any term or condition of the Franchise not
expressed herein.
E. The Grantee, by its acceptance of the Franchise, acknowledges that that
it has carefully read the terms and conditions hereof and is willing to and does
accept all the risks of the meaning of such terms and conditions and agrees
that, in the event of any ambiguity therein or in the event of any other dispute
over the meaning thereof, the same shall be construed strictly against the
Grantee and in favor of the Grantor.
Section 2: EFFECTIVE DATE: This ordinance shall take effect and be in
force thirty {30) days after the date of its passage; and the City Clerk of the
City of Poway is hereby authorized to use summm,ary publication procedures pur-
suant to Government Code Section 36933 utilizing the Powa~ News Chieftain, a
newspaper of general circulation publicshed in the City of Poway.
Ordinance No. 298
Page 23
INTRODUCED AND FIRST READ at a regular meeting of the City Council of the
City Of Poway, held the 5th day of September, 1989, and thereafter PASSED and
ADOPTED at a regular meetlng of said City Counc11 held the 19th day of
September, 1989 by the following roll call vote:
AYES:
NOES:
ABSTAINS:
ABSENT:
COUNCILMEMBERS: BRANNON, EMERY, GOLDSMITH, HIGGINSON, KRUSE
COUNCILMEMBERS: NONE
COUNCILMEMBERS: NONE
COUNCILMEMBERS: NONE
Carl R. Kruse~Mayor
Marjorie K~ Wahlsten, City Clerk